Court of Appeals Strikes Down Communications Act Ban on Political and Issue Advertising on Noncommercial Broadcasting Stations – Analyzing the Issues

The Communications Act’s ban on noncommercial broadcast stations running political and issue advertising was struck down as unconstitutional by the US Court of Appeals for the Ninth Circuit. While the Court upheld the prohibition on commercial advertising for products and services, the majority of the Court felt that the ban on political advertising could not be justified. Bob Corn-Revere of Davis Wright Tremaine’s DC office, who is quite experienced in First Amendment litigation and is a frequent speaker and author on these issues, offers this summary of the constitutional issues raised by this case:

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A divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Communications Act provisions that ban political and issue advertising on public broadcasting stations violate the First Amendment. The court left intact another provision that prohibits commercial advertising on public stations. The majority opinion in Minority Television Project, Inc. v. FCC, written by Judge Carlos Bea, reasoned that Congress lacked substantial evidence that the ban on political and issue advertising set forth in 47 U.S.C. § 399b was necessary to serve the government’s purpose of preserving the mission and quality of public broadcasting, and that the statute was not narrowly tailored. At the same time, the court held that allowing commercial advertising would undermine the purpose of public broadcasting to provide educational and niche programming.

Synthesizing three decades of First Amendment case law, Judge Bea wrote that Congress must have substantial evidence to justify a content-based speech restriction “at the time of the statute’s enactment.” The evidence must show “that the speech banned by a statute poses a greater threat to the government’s purported interest than the speech permitted by the statute.” The decision principally relied on FCC v. League of Women Voters, a 1984 Supreme Court case that struck down a similar Communications Act prohibition on editorializing by public broadcast stations. Judge Bea’s opinion also relied on a 1993 commercial speech case, Cincinnati v. Discovery Network, for “[a]dditional instruction on what narrow tailoring requires. That case invalidated a municipal ordinance that imposed differential regulation on newsboxes, depending on whether they contained commercial or noncommercial matter.

Judge John Noonan concurred in the result but disagreed that the commercial speech precedents applied. Rather, he wrote that “in this delicate and difficult field of rapid change, it would be hard to believe that the restrictions on political speech established by the statute over thirty years ago are constitutionally valid even if they met constitutional criteria when they were published.” Judge Richard Paez dissented and agreed with Judge Noonan that Discovery Network does not apply to a case assessing the constitutionality of broadcast regulation. He wrote that the law should be upheld under the standard articulated in League of Women Voters.

The one point on which all of the judges agreed was that intermediate scrutiny – not strict scrutiny – should be applied, even though the law imposed a content-based restriction on political speech. Judge Bea cited the network brief filed in FCC v. Fox Television Stations and ABC, Inc. and observed that “the Supreme Court itself may soon declare that the era of special broadcast exemption from strict scrutiny is over.” But he added, “that case has not yet been decided, “ and “just as golfers must play the ball as it lies, so too we must apply the law of broadcast regulation as it stands today.”

Nevertheless, Judge Bea applied what he described as “a robust form of intermediate scrutiny” that calls for “judicial ‘wariness’ within the standard described” because the restrictions prohibited core political speech. Apart from some assertions made by the government, he found no evidence, either in the record or in the legislative history, to support the restrictions on issue and political advertising. Thus, he concluded, even under intermediate scrutiny, the government “cannot simply assert its way out of the ‘substantial evidence’ requirement of the First Amendment.

The FCC may seek rehearing by the Ninth Circuit panel or en banc, which is likely given the significance of the decision and the divided panel opinion. If the circuit court denies rehearing or upholds the panel decision, the FCC may seek review by the Supreme Court. It would be expected to do so in such circumstances, since the panel decision invalidated sections of a federal statute

In a separate unpublished opinion, the panel unanimously rejected the Minority Television Project’s argument that the statute is unconstitutionally vague. The court noted that a statute need not have “mathematical certainty” to survive a vagueness challenge, and that, in case of doubt about the law’s scope, the FCC’s rules allow for declaratory rulings for broadcasters who fear they might run afoul of Section 399b.

As I posted on Twitter, I’m interested in how public stations will comply. Like any broadcasters, the stations could refuse issue (non-candidate ads) but under Sec 312/Sec 315 provisions, the stations will have to accept candidate ads.

But practically, how will LUR be calculated for example? Obviously the FCC will appeal, but will this lead to a rulemaking proceeding?

I don’t think that we can know the practical applications of this decision right now. If the decision was to take effect as written, it would appear that political and issue ads would not be considered “advertising” on noncommercial stations, and would not be banned at all. Right now, noncommercial stations can run what looks like advertising for other nonprofit groups, and it would appear that the logical assumption would be that political ads would be treated the same way.

But there will no doubt be appeals of the decision, giving the FCC some time to decide how to treat issues like Lowest Unit rates for those stations that decide to take political ads. Remember, reasonable access does not apply to noncommercial stations – so stations would seemingly be free to take ads from candidates (in which case LUR and equal opportunities would apply), but would not have to do so – much like state candidates are treated on commercial stations, or how cable treats all candidates as it is not subject to reasonable access either.

Dana John Hill

Does this ruling require non-commercial stations to accept candidate advertising? If stations prefer to not have political ads at all, can they chose to not air them? If they do have to air them, will they have the ability to modify them to meet certain standards the stations have for other underwriting? Many public broadcasting stations, for example, record all their underwriting in-house with their own talent. Will stations have to run political “attack” ads if that is what candidates submit? Given that the audience for public broadcasting is wary of advertising in general, this seems like a potential disaster for non-commercial stations.

About David Oxenford

David Oxenford represents broadcasting and digital media companies in connection with
regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years. Continue Reading

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David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.